How do you proof separation for the purposes of a divorce?

Why does the date of separation matter?

In Australia, the only ground for divorce is “irretrievable breakdown” of the marriage. The only way to prove “irretrievable breakdown” is to prove separation for at least 12 months. The law does not define what separation must look like - instead, it will evaluate the change in the overall character of the relationship.

The date of the formal, legal separation may be important in many matters. It will, for instance, determine when a person can file for divorce, when child support becomes payable, when new Centrelink benefits become payable and how the court will calculate the property settlement.


How does the court determine final separation?

There is no legal definition of what final separation must look like. If there is a dispute about the date, or whether there has in fact been a final separation, the court will look at the total circumstances of the relationship, both before and after the alleged separation. It will look at whether the parties could prove a significant change in the pattern of natural indicators of a marital relationship.

Some of the natural indicators of marriage include living together, having sexual relations, cooking and cleaning for each other, supporting and protecting each other and spending time together as a couple. The absence of one of these indicators won’t be conclusive – not cooking for someone does not prove separation! Thus, in the absence of a formal definition, the court will find evidence of final separation by evaluating the change in the overall character of the relationship.
 

What if only one party wants to separate?

The law does not demand both parties to want the separation. If legal separation has been proved, it is established even if only one party wants it.  However, this cannot happen accidentally, or without knowledge of the other party. One party at least must have the intention to end the relationship and then communicate that intention to the other party. If your words and actions clearly indicate your intention that the marriage is over, you need not express your intention explicitly.

Must you move out of the marital home?

There is no requirement that one party must move out of the home. Evidence of a change in the overall character of the relationship will suffice.  It might be practicable in some circumstances not to move out.

However, it is important to remember that you will have to prove “separation” on a specific day if you later want to count the period of separation under the same roof, towards the 12-month separation period to prove “irretrievable breakdown” of the marriage. Collect evidence of the change in the overall status of your relationship from the date you wish to state as the date of separation. You can make a sworn statement (affidavit) to record such evidence.

What can you use as evidence?

  • Moving into another bedroom and telling someone about this
  • Telling friends that you are separated
  • Recording the date and future arrangements in writing – signed and dated by both parties, if possible
  • A revised will
  • A diary entry
  • A change of relationship status on social media
  • Letters to other parties, such as the bank or school


Will a brief reconciliation make a difference?

If you get back together briefly but split up again within three months, the Act allows that the 12 months’ separation period will not require a restart. However, the three months reconciliation won’t count towards the 12 months’ separation and this will only be allowed once.

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